Tharindu Uduwaragedara
President Ranil Wickremesinghe may stay in office for another year without holding a presidential election. There are plans to extend the term of the presidency by one year.
The President consulted legal ‘experts’ who claimed that without a referendum, the term of office of the President can be extended up to six years. This story, reported in various outlets, was featured as the headline of the Mawbima newspaper last Sunday, backed by the opinion of a so-called ‘expert’.
The Argument
Pratibha Mahanamaheva, a former professor and lawyer, argues that just as the 19th Amendment of the 2015 Constitution reduced the term of office of the President from six years to five years, it is possible to extend the term of office from five to six years with a two-thirds majority in Parliament. He also mentioned that no referendum was held for that purpose at that time.
Article 83(b) of the Constitution states that a bill extending the term of office of the President and the term of Parliament beyond six years must be passed by two-thirds of Parliament and a referendum. Lawyer Pratibha Mahanamaheva said that if the President somehow loses a two-thirds majority, it is possible to pass a referendum as a matter of national importance.
Is the Story True?
We revisited the country’s constitution and consulted constitutional experts. As we know, the real Ranil Wickremesinghe does not believe he can extend his tenure. He knows these arguments are unfounded. So why does he use his own side to float these absurd arguments? There is a secret reason for that, which we will reveal at the end of this story.
Mahanamaheva’s Argument
As a journalist, I have been reporting on the Constitution for almost 10 years. I’ve covered how new constitutions are made, interpretations of the constitution, and lawsuits filed on the constitutionality of Bills in Parliament. In October 2018, we covered Maithripala Sirisena’s attempted do a constitutional coup with complete constitutional arguments.
Throughout my media career, I’ve learned a lot about the Constitution. However, from my experience, if Pratibha Mahanamaheva presents a constitutional argument, it is often flawedMahanamaheva has consistently made constitutional arguments that align with the wishes of whoever is in power. Even those of us who are not constitutional experts understand that these stories are logically unsound.
The Problem of Logic
The basic premise of the previous argument is that a referendum is required if the term of office of the President is extended beyond six years. This requirement stems from the principle of popular sovereignty.
Article 3 of the Constitution states that the sovereignty of the Republic of Sri Lanka rests with the people and is inalienable. Sovereignty includes governing powers, fundamental rights, and suffrage.
Article 30 of the Constitution states that the President must be elected by the people and hold office for a period of five years. To change or amend this article, a constitutional amendment draft should be brought. Some constitutional experts argue that amending this section does not require a referendum under Article 83(b).
However, if the term of office of the President is extended beyond six years, it would require the approval of the people through a referendum. This is reflected in the constitutional language of the 1978 constitution.
Article 83(b)
Before the 19th Amendment, which reduced the presidential term to five years, the president served a six-year term. That was the reason article 83 (b) mentions 6 years. This indicates that the framers of the constitution believed that extending the president’s term beyond the prescribed period should require a referendum.
Article 3 asserts that the sovereignty of the Republic of Sri Lanka rests with the people and is inalienable. This sovereignty encompasses governing powers, fundamental rights, and suffrage.
Article 30 of the Constitution mandates that the President must be elected by the people and serve for five years. To change this, a constitutional amendment draft must be introduced. However, Ranil’s advisors argue that amending this section does not necessitate a referendum under Article 83(b).
This implies that the president’s term can be up to six years but not beyond without people’s approval, as stated in the constitution.
But where did Article 83(b) originate? It wasn’t arbitrary. There was either an oversight by the constitutional framers or a deliberate provision. The 19th Amendment, which reduced the presidential term from six to five years, didn’t amend Article 83(b) to state, “The term of office of the President is five years. If it is extended beyond that, a referendum is required.”
Pratibha Mahanamaheva and Ranil’s constitutional ‘experts’ now believe they can exploit this loophole.
Article 83(b) fundamentally ensures that sovereignty is not compromised. Article 3 enshrines people’s sovereignty. Section (a) of Article 83 includes provisions that should not be altered without a referendum, with sovereignty being one of them.
In constitutional interpretation, the focus is on whether an act or amendment exceeds or violates constitutional clauses. If the substance, meaning, or value of a section is altered, the amendment violates that section.
Even if the wording of the article 3 of the constitution remains unchanged, extending the president’s term would violate it. The people’s right to vote for a five-year term is fundamental. Extending this term creates a severe distortion of the essence of the article 3.
Spirit of the Constitution
Dr. Jayampathy Wickramaratne, in an article for the Daily FT newspaper, argued that the spirit of the Constitution must be preserved. He noted that even a referendum cannot change the core principles of the Constitution. This argument was expected to arise in the Supreme Court hearing on the 4th Amendment to the Constitution related to the 1982 referendum.
In 2004, when an amendment bill called the 19th Amendment Bill was proposed, judges ruled that the amended draft restricted affirmed religious freedom. Quoting that, Dr. Wickramaratne pointed out that the basic elements of the Constitution should not be destroyed during amendments, and this can only be done by adopting a completely new constitution.
Accordingly, even a referendum cannot destroy elements such as people’s sovereignty and the right to vote, which are fundamental to the Constitution.
The Presidential Election
As citizens, we have declared that there is no mandate for the president we elected in 2022. Since then, the constitution has not been able to address the people’s request until two years have passed. Even with its shortcomings, we, as the people, wait until the presidential term we elected for five years expires constitutionally. If the opportunity to express opinions democratically is compromised, it affects the basic essence of the Constitution.
Therefore, I ask: What if Ranil postpones the election for a year?
Given Ranil Wickremesinghe’s history and the alliance with the Rajapaksa gang, extending his term poses a significant threat. If they bring a corrupt draft constitution and manage to pass it through a referendum by suppressing opposition, it would be unconstitutional.
Ranil Wickremesinghe is already violating the spirit of the Constitution. As a successor president, he cannot make significant decisions without a mandate. Unlike D.B. Wijetunga in 1993, who was cautious, the current president is making decisions that could upend the country’s economic and political core without any mandate.
The 19th Amendment
Pratibha Mahanamaheva claims that since the 19th Amendment shortened the presidential term without a referendum, extending it again does not require one. However, the 19th Amendment shortened the term as a response to the people’s mandate and did not weaken sovereignty. Shortening the tenure allows for more frequent elections, which strengthens sovereignty.
The 1982 Referendum
The extension of Parliament’s term through the 1982 referendum led to a dark period in Sri Lankan history, characterized by civil wars, killings, and economic collapse. It created a corrupt economic system and an ethnic war, showing the detrimental effects of extending terms without proper democratic processes.
Amendments and Constitutional Governance
In the past year, many bills have been deemed unconstitutional by the courts. This highlights the importance of drafting bills within constitutional limits to protect fundamental rights and sovereignty. The Ranil Wickremesinghe regime has been repeatedly shown to be unconstitutional, based on the number of bills and drafts declared unconstitutional by the courts.
Final Thoughts
There is a secret. Ranil Wickremesinghe knows he cannot extend his term beyond a few months and that a presidential election must be held. The misleading news about term extensions is a tactic to maintain control. He wants support from the Police force, Attorney-General’s department, MPs and judicial officers in the next few months. As the election approaches, the difficulty of maintaining this state machinery increases, and everyone knows that Ranil will lose. He tries to manipulate that truth. Get support from people.
Ranil has increased the presidential budget and seems to be preparing for his departure. It’s time for everyone in the government to consider what will happen when Ranil’s term ends in a few months.
So goodbye Ranil. Those stories about term extensions doesn’t work.
